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Clearly, Justice Souter has made many evaluations that go to the aesthetic value of the works. (27) How can we reconcile these obvious evaluations with his insistence that it is not appropriate for judges to assess aesthetic value? One explanation is that he implicitly adheres to a traditional distinction in the activities of critics: description, interpretation, and evaluation. Traditional objectivist approaches to aesthetics assume that description and perhaps also interpretation are "neutral," that is, that there is one and only one correct interpretation. Under this traditional view, only evaluation involves judgments of aesthetic value.

Justice Souter and the New York Times seem to believe that his analysis consists only of description and interpretation of the parody in question and thus is appropriately objective. But many philosophers have shown that even description and certainly interpretation involve extensive judgments of aesthetic value. (28) In our choices of which features upon which to focus in a description, we are making determinations of which properties are most important. Should we discuss colors and shapes? -- the portrayal of women? -- the portrayal of economic relationships? -- the emotional content? -- the political inspiration? A virtually infinite list of properties can be considered for any given work. Because of the choices that are made in discussing a work in certain terms and not others, there is no such thing as "objective," value-free description or interpretation. Justice Souter's confidence in making descriptions and interpretations blithely ignores the value judgments involved in those assessments.

The belief of Justice Souter (and others) that aesthetic value cannot be determined with objectivity sufficient to satisfy the needs of the court is questionable on other grounds. A closer examination of the 1903 language of Justice Holmes, cited approvingly by Justice Souter, does not support this presumed subjectivity. Indeed, Holmes' plea that the public must first learn "the new language in which their author spoke" before a genius can be appreciated suggests just the opposite. It says that once we have learned to appreciate a work, we all would be able to appropriately assess its excellent quality. In other words, reasonable people - competent observers - could all come to the same conclusion with regard to the work. But this is precisely "objectivity" in aesthetic value. Justice Holmes' own words support the possibility of objective determinations of aesthetic value, not their hopeless subjectivity!

Justice Kennedy, in his concurring opinion, expresses concerns that highlight the importance of confronting the necessity of making judgments of aesthetic value in parody cases. He cautions that the court might have made it too ". . . easy for musicians to exploit existing works and then later claim that their rendition was a valuable commentary on the /p. 132 original. Almost any revamped modern version of a familiar composition can be construed as a 'comment on the naiveté of the original' . . ." (29)

Justice Kennedy is concerned about "profiteers" and "just any commercial take-off . . . rationalized post hoc as a parody." (30) His advise is to ensure that the court does not "allow any weak transformation to qualify as parody." (31) These warnings clearly show the importance of assessing the quality of the parody, not merely the fact of parody. For Kennedy, it is not enough to determine that something makes a critical comment. It must also be a good (strong) critical comment to qualify for the "fair use" exemption. This does not mean that copyright protection should extend only to outstanding works. But it does necessitate some judgment of aesthetic value to meet Justice Kennedy's well-taken concerns.

How should judges reason when faced with issues calling for the determination of aesthetic value? What should be the basis for their determinations? Can and should such legal decisions be based strictly on application of legal rules or must judges necessarily also appeal to the aesthetic view of their community and themselves in making determinations affecting art? Is it possible to codify aesthetic value so that it can be applied consistently by all judges?

Governmental agencies in related areas, most notably state and Federal agencies in the arts, regularly make decisions according to objective standards of "artistic excellence and artistic merit," as determined by panels of experts in each field. (32) These grant decisions primarily involve the awarding of discretionary grant funds to private citizens, while copyright cases involve determinations by courts of law concerning intellectual property rights. Even so, copyright law could benefit from the experience of related governmental cultural agencies in the use of experts to identify and apply objective standards, and the justifiability of the use of such objective standards by a governmental body.

The courts have in place established roles for experts of all kinds. Their use in cases involving issues of aesthetic value would seem both appropriate and necessary. I submit that use of these expert assessments, combined with the close textual analysis and interpretation already demonstrated by Justice Souter in this decision, would be an appropriate activity for the courts.

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"A 'Pretty' Parody Stands Up," (Editorial) Los Angeles Times (March 9, 2023), p. B14.

Barkin, Gary M., "'Pretty Woman' and the Parody Defense to Copyright Infringement," 31 Court Rev. 18 (Spring 1994).

/p. 133

Battin, Margaret P., et al., Puzzles about Art: An Aesthetics Casebook (New York: St. Martin's Press, 1989).

Beardsley, Monroe C., Aesthetics: Problems in the Philosophy of Criticism, 2d ed. (Indianapolis: Hackett Publishing Co., Inc., 1958, 1981).

Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).

Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 128 L.Ed. 2d 500, 62 U.S.L.W. 4169 (1994).

Chandler, Henry P., "The Attitude of the Law toward Beauty," 8 American Bar Association J. 470 (1922).

Copyright Law of 1976, Pub.L.No. 94-553 (Oct. 19, 1976), 90 Stat. 2541, 17 U.S.C. 101 et seq.

Dukeminier, J.J., "Zoning for Aesthetic Objectives: A Reappraisal," 20 Law and Contemp. Probs. 218 (1955)

Emerson v. Davis, 8 F. Cas. 615 (No. 4,436) (CCD Mass. 1845).

Fisher, John Andrew, "Criticism and the Subjectivity of Art," in Reflecting on Art (Mountain View, CA: Mayfield Publishing Co., 1993), pp. 8-9.

Gass, William H., "Goodness Knows Nothing of Beauty: On the Distance between Morality and Art," Harper's Magazine (April, 1987).

Goldstone, Harmon H., "Aesthetics in Historic Districts," 36 Law and Contemp. Probs. 379 (Summer 1971).

Greenhouse, Linda, "Ruling on Rap Song, High Court Frees Parody from Copyright Law," New York Times (March 8, 2023), pp. A1, A12.

Hospers, John, "Problems of Aesthetics," in The Encyclopedia of Philosophy, Vol. 1, ed. by Paul Edwards (New York: Macmillan Publishing Co., Inc.), pp. 35-56.

Karlen, Peter H., "Aesthetic Quality and Art Preservation," 41 J. Aesthetics & Art Criticism 309 (Spring 1983).

Leval, Pierre N., "Campbell v. Acuff-Rose: Justice Souter's Rescue of Fair Use," 13 Cardozo Arts and Entertainment L.J. 19 (1994)

Miller v. California, 413 U.S. 15 (1973).

"Parody May Be Protected, High Court Rules," The News Media & The Law 22 (Spring 1994).

"The Supreme Form of Flattery," (Editorial), New York Times (March 9, 2023), p. B16.

Toedt, D.C., "Oh, Pretty Woman: Muddying Software Copyright Even /p. 134 Further with 'Transformative Fair Use,'" 11 The Computer Lawyer 15 (June 1994).

Tolstoy, Leo, What is Art? Trans. By Almyer Maude (New York: Macmillan Publishing Co., 1960) (originally published 1896)

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(1) Quote in Luther R. Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164, 127 L.Ed. 2d 500, 62 U.S.L.W. 4169, 4177, appendix B (U.S. 1994) Return to text

(2) Campbell v. Acuff-Rose, 62 U.S.L.W. 4169 (1994). This was the first time that the Court had considered the nature of parody under the Copyright Act of 1976, 17 U.S.C. 107 (1988 ed. and Supp. IV). Return to text

(3) 62 U.S.L.W. at 4173 Return to text

(4) Peter H. Karlen has summarized areas of law where assessments of quality are necessary. In customs law, for example, objects which are among the "fine arts" qualify for exemption from the normal duties on imports. In the famous case of Miller v. California, 413 U.S. 15 (1973), the U.S. Supreme Court upheld laws prohibiting obscene, exempting works of "serious artistic value," See supra under "REFERENCES," Karlen at 310-11. Return to text

(5) Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903), quoted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4173 (1994). Return to text

(6) Another statement early in the century is typical of the legal attitude toward aesthetic value. Henry P. Chandler said in 1922 that "beauty" lacks the sort of objective standard which could be used for regulation. Instead he notes that a standard is evolving through public opinion. Chandler, at 473-74.

One commentator in the context of aesthetic value judgments for historic preservation regulation said that decisions are difficult as "they hinge primarily on so subjective a criterion as an aesthetic judgment." Goldstone, at 380.

J.J. Dukeminier acknowledges that rationality is possible in making aesthetic evaluations, although absolute standards are not, but his argument is marred by a pervasive confusion of the psychology and the philosophy of art. Dukeminier, at 228-29. Return to text

(7) Campbell v. Acuff-Rose, 62 U.S.L.W. at 4173 (1994). Return to text

(8) Id. Return to text

(9) For good overviews of the subjectivist-objectivist debate, see Hospers, at 52-55; Battin, at 33-37. Return to text

(10) One of the best-known subjectivists is David Hume, an eighteenth-century Scottish philosopher. He articulated his position most clearly in "Of the Standard of Taste," in four dissertations, 1757. See also discussions of subjectivity ("Psychological Definitions") in Beardsley, at 512-15; Battin, at 34-35. Return to text

(11) Objectivists include C.E.M. Joad and Monroe C. Beardsley. Battin, at 33-35. Return to text

(12) Copyright Act of 1976. 17 U.S.C. 102(a). although the word "original" only appeared in the Federal statute for the first time in the 1976 Copyright Revision, Congress made clear that it was merely codifying existing law. "The phrase 'original works of authorship,' which is purposely left undefined, is intended to incorporate without change the standard of originality established by the courts under the present (1909) copyright statute." H.R. Rep. No. 94-1476, p. 51 (1976); S. Rep. No. 94-473, p. 50 (1975) Return to text

(13) Justice Souter cites the clause of the constitution authorizing copyright: ". . . copyright's very purpose, '[t]o promote the Progress of Science and useful Arts. . . . ' U.S. Const., Art. 1 Sec. 8, cl. 8." Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 (1994). He also cites approvingly a 1990 decision that refers to "the very creativity which . . . [the 1976 Copyright Law] is de-/p. 135 signed to foster." Quoting from Stewart v. Abend, 495 U.S. 207, 236 (1990) (italics added by this author). Campbell v. Acuff-Rose, 62 U.S.L.W. at 4172. . Return to text

(14) Emerson v. Davis, 8 F. Cas. 615, 619 (No. 4,436) (CCD Mass. 1845), quoted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 (1994). Return to text

(15) Campbell v. Acuff-Rose, 62 U.S.L.W. at 4172 (1994). Return to text

(16) Id. The language "merely superseding" is used again at 4175. Return to text

(17) Leval, at 19-20, argues that Souter's opinion corrected the "overreaction" to the supreme Court decision in Sony Corp. of America v. Universal city Studios, Inc., 464 U.S. 417 (1984), which included the dictum that "every commercial use of copyrighted material is presumptively unfair," id. at 451. Return to text

(18) Campbell v. Acuff-Rose, 62 U.S.L.W. at 4174 (1994). Justice Kennedy, in his concurring opinion, goes even further in stressing the importance of caution in making these assessments of commercial gain. He expresses concern that the court's decision not be exploited by "profiteers" or "just any commercial take-off [that] is rationalized post hoc as a parody." 62 U.S.L.W. at 4178. Return to text

(19) Id. at 4172. Return to text

(20) See Plato, The Republic, especially Book II; Tolstoy, especially chapter 15. Critics of the view that the aesthetic value of a work is a function of its moral value include Gass and the novelist Oscar Wilde, Preface from The Picture of Dorian Gray. Return to text

(21) 754 F.Supp. 1150, 1155 (M.D. Tenn. 1991), quoted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4171 and again at 4173 (1994). Return to text

(22) I will not take up here the issue of whether a negative aesthetic evaluation (such as "ugliness") constitutes a low level of aesthetic value, negative aesthetic value, or a positive aesthetic disvalue. For a discussion of this issue, see Beardsley, at 546. Return to text

(23) 972 F.2d 1429, 1442 (6th Cir. 1992), quoted in Campbell v. Acuff-Rose, 62 U.S.L.W. at 4173 (1994). Return to text

(24) Campbell v. Acuff-Rose, 62 U.S.L.W. at 4173 (1994). Return to text

(25) "A 'Pretty' Parody Stands Up," (Editorial), Los Angeles Times (March 9, 2023), p. B14. Return to text

(26) "The Supreme Form of Flattery," (Editorial), New York Times (March 9, 2023), p. B16. For a related news report, see Greenhouse. Return to text

(27) Much discussion has been devoted elsewhere to the distinctions between artistic and aesthetic value, but it is beyond the scope of this paper to explore those differences here. Return to text

(28) See e.g., Fisher, at pp. 8-9. Return to text

(29) Campbell v. Acuff-Rose, 62 U.S.L.W. at 4178 (1994). Return to text

(30) Id. Return to text

(31) Id. Return to text

(32) The authorizing legislation for the National Endowment for the Arts requires that
"artistic excellence and artistic merit are the criteria by which applications are judged. . . ." 20 U.S.C. 954(d). Return to text

April 1995

Copyright Julie Van Camp . Reprinted at www.beautyworlds.com with permission. Your comments, questions, and suggestions are welcome: jvancamp@csulb.edu Last updated: May 26, 2023



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